Shri Ashok Kumar Gupta, Kanpur V. Income Tax Officer, Range- 4(3), Kanpur

ITA 410/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3592 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 11-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice
• Section: 144; 80C; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 410/LKW/2018 ASSESSMENT YEAR: 2010 - 11 SHRI ASHOK KUMAR GUPTA SAMPRITI - 2, FLAT NO.D 4 TH FLOOR, BRAJANATHCHAK HALDIA TOWNSHIP, HALDIA WEST BENGAL V. INCOME TAX OFFICER 4(3) KANPUR T AN /PAN : ANNPG0483B (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI C. K. SINGH, D.R. DATE OF HEARING: 21 0 2 201 9 DATE OF P RONOUNCEMENT: 22 0 2 201 9 O R D E R PER A. D. JAIN, V.P . : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. CIT(A) - II, KANPUR DATED 23/3/2018 FOR ASSESSMENT YEAR 2010 - 11, TAKING THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE LEARNED CIT(A) ERRED I N DISMISSING THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION AND THEREBY CONFIRMING THE ADDITION MADE BY THE LD ASSESSING OFFICER. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE SAID DISMISSAL OF APPEAL IS WRONG AND BAD IN LAW AND IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY VERY KINDLY BE SET ASIDE. 1.1 AS AN ALTERNATE AND WITHOUT PREJUDICE TO ABOVE IT IS PRAYED THAT THE MATTER MAY VERY KINDLY BE RESTORED TO THE FILE OF THE LEARNED A O TO PASS THE ORDER ON MERITS OF THE CASE, AF TER GIVING O PPORTUNITY OF BEING HEARD TO THE APPELLANT, AS THE ASSESSMENT ITA NO.410/LKW/2018 PAGE 2 OF 6 ORDER WAS PASSED U/S 144, WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 1.2 AS AN ALTERNATE AND WITHOUT PREJUDICE TO ABOVE IT IS PRAYED THAT THE MATTER MAY VERY KINDLY B E RESTORED TO THE FILE OF THE LEARNED AND HE MAY VERY KINDLY BE DIRECTED TO GIVE ANOTHER OPPORTUNITY TO T H E ASSESSEE AND PASS THE ORDER ON MERITS OF THE CASE. 2. THAT THE LEARNED CIT(A), IN EFFECT BY DISMISSAL OF APPEAL, ERRED IN UPHOLDING THE ACTION OF T HE AO OF INITIATION OF RE - OPENING PROCEEDINGS AND THE CONSEQUENTIAL ASSESSMENT ORDER PASSED IN THIS CASE ARE WRONG, BAD IN LAW AND IS PRAYED TO BE QUASHED. 3. THAT THE LEARNED CIT(A), IN EFFECT BY DISMISSAL OF APPEAL, WITHOUT PREJUDICE TO THE GROUND NO . 2, ERRED IN UPHOLDING THE ACTION OF THE AO CONCLUDING THE ASSESSMENT EX - PARTE AND FRAMING THE IMPUGNED ASSESSMENT ORDER U/S 144 R.W.S. 143(3) /148. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ASSESSMENT ORDER SO PASSED IS WRONG, BAD IN LAW A ND IS PRAYED TO BE QUASHED 4. THAT THE LEARNED CIT(A), IN EFFECT BY DISMISSAL OF APPEAL, ERRED IN UPHOLDING THE ACTION OF THE AO OF TREATING THE DEPOSITS IN THE BANK ACCOUNT AS UNEXPLAINED AND ALSO ERRED IN MAKING THE ADDITION AS INCOME FROM UNDISCLOSED SOURCES. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ADDITION MADE IS WRONG AND BAD IN LAW AND IT IS PRAYED THAT THE SAME MAY VERY KINDLY BE DELETED NOW. 5. THAT THE LEARNED CIT(A) IN EFFECT BY DISMISSAL OF APPEAL, ERRED IN UPHOLDING THE ACTION OF THE AO OF NOT ALLOWING THE DEDUCTION CLAIMED U/S 80C. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CLAIM OF DEDUCTION BEING PROPER AND THE ADDITION MADE IS WRONG AND BAD IN LAW AND IT IS PRAYED THAT THE SAME MAY VERY KINDLY BE DELE TED NOW. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, AMEND, MODIFY, SUBSTITUTE, DELETE AND/OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON OR BEFORE FINAL HEARING, IF NECESSITY SO ARISES . ITA NO.410/LKW/2018 PAGE 3 OF 6 2 . BY VIRTUE OF THE ASSESSMENT ORDER DATED 21/11/2017, TH E ASSESSING OFFICER MADE ADDITION OF RS.94,52,463/ - , DISALLOWING THE ASSESSEES CLAIM UNDER SECTION 80C OF THE ACT, IN THE ABSENCE OF EVIDENCE. THE ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION S 144/148/143(3) OF THE INCOME - TAX ACT, 1961. 3 . VIDE THE IMPUGN ED ORDER, THE LD. CIT(A) HAS DISMISSED ASSESSEES APPEAL FOR NON - PROSECUTION. 4 . AT THE OUTSET, APROPOS GROUND NO.1.1, THE LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT THE ASSESSING OFFICER HAS PASSED THE ASSESSMENT ORDER UNDER SECTION 144 OF THE ACT WITHOUT A FFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THAT SO, THE MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. 5 . HEARD. THE LD. A.R. OF THE ASSESSEE HAS BROUGHT TO OUR NOTICE, APPLICATION (APB - 11) FOR ADJOURNME NT, RECEIVED BY THE ASSESSING OFFICER ON 17/11/2017, AS AVAILABLE FROM THE COPY OF THE SAID APPLICATION. THIS APPLICATION READS AS FOLLOWS: - ITA NO.410/LKW/2018 PAGE 4 OF 6 6 . IN THE ASSESSMENT ORDER, THIS APPLICATION OF THE ASSESSEE HAS NOT BEEN CONSIDERED BY THE ASSESSING OFFICER, E VEN THOUGH THE SAME HAS BEEN RECEIVED BY THE ASSESSING OFFICER HIMSELF. AS PER THIS APPLICATION, THE ASSESSEE REQUESTED FOR A SHORT REASONABLE TIME SO AS TO ENABLE THE ASSESSEE TO MAKE PROPER SUBMISSIONS BEFORE THE ASSESSING OFFICER. IN THE APPLICATION, IT HAS ALSO BEEN STATED BY THE ASSESSEE THAT EARLIER, HE WAS POSTED IN KANPUR, BUT HE HAD BEEN TRANSFERRED TO HALDIA (WEST BENGAL) AND WAS, AT THAT TIME, RESIDING THERE; THAT THE MATTER WAS QUITE OLD AND THE ASSESSEE WAS IN THE PROCESS OF COMPILATION OF TH E INFORMATION DESIRED BY THE ASSESSING OFFICER ; THAT SOME TIME, OF AT LEAST T EN WORKING DAYS WAS REQUIRED SO AS TO ENABLE THE ASSESSEE TO COME FROM HALDIA FOR MAKING COMPLIANCE BEFORE THE ASSESSING OFFICER. THIS APPLICATION OF THE ASSESSEE HAVING NOT BEEN CONSIDERED BY THE ASSESSING ITA NO.410/LKW/2018 PAGE 5 OF 6 OFFICER, THE ASSESSEE, BY PASSING OF THE ASSESSMENT ORDER UNDER SECTION 144 OF THE ACT, WAS DEPRIVED OF DUE AND ADEQUATE OPPORTUNITY OF HEARING BEFORE THE ASSESSING OFFICER, IN VIOLATION OF THE NATURAL JUSTICE PRINCIPLE OF AUDI ALTER E M PARTEM . 7 . AS FOR THE ORDER PASSED BY THE LD. CIT(A), THE LD. CIT(A) HAS DISMISSED THE ASSESSEES APPEAL FOR NON PROSECUTION, OBSERVING THAT NOTICES DATED 19/1/2018, 30/1/2018 AND 15/2/2018 FIXING THE DATE FOR COMPLIANCE ON 29/1/2018, 6/2/2018 AND 1 5/3/2018 WERE SERVED ON THE E - MAIL ADDRESS SUBMITTED BY THE ASSESSEE WHILE E - FILING THE APPEAL; THAT HOWEVER, NO WRITTEN SUBMISSION OR PAPER BOOK HAD BEEN FILED IN SUPPORT OF ANY OF THE GROUNDS OF APPEAL TAKEN; AND THAT NONE HAD ATTENDED ON BEHALF OF THE A SSESSEE . SUCH SERVICE OF NOTICES HAS, HOWEVER, BEEN DISPUTED BY THE ASSESSEE . 8 . IN VIEW OF THE ABOVE, WE DEEM IT PROPER TO REMIT THIS MATTER TO THE FILE OF THE ASSESSING OFFICER TO BE DECIDED AFRESH IN ACCORDANCE WITH THE LAW, ON AFFORDING DUE AND ADEQUATE O PPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL CO - OPERATE IN THE FRESH PROCEEDINGS BEFORE THE ASSESSING OFFICER. ALL PLEAS AVAILABLE UNDER THE LAW SHALL REMAIN SO AVAILABLE TO THE ASSESSEE. ORDERED ACCORDINGLY. NOTHING FURTHER SURV IVES FOR ADJUDICATION, NOR WAS ANYTHING ELSE ARGUED. 9 . IN THE RESULT, FOR STATISTICAL PURPOSES, THE APPEAL IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 / 02 /201 9 . SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 22 ND FEBRUARY , 201 9 JJ: 2102 ITA NO.410/LKW/2018 PAGE 6 OF 6 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR